2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 1 of 19 Pg ID 43 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA v. ROBERT BOSCH GmbH Criminal No. 2:15-cr-20197 Filed: June 22, 2015 Violation: 15 U.S.C. 1 Defendant. PLEA AGREEMENT The United States of America and Robert Bosch GmbH ("defendant"), a corporation organized and existing under the laws of the Federal Republic of Germany, hereby enter into the following Plea Agreement pursuant to Rule 11 ( c )(1 )(C) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."): RIGHTS OF DEFENDANT 1. The defendant understands its rights: (a) (b) to be represented by an attorney; to be charged by Indictment; ( c) as a corporation organized and existing under the laws of the Federal Republic of Germany, to decline to accept service of the Summons in this case, and to contest the jurisdiction of the United States to prosecute this case against it in the United States District Court for the Eastern District of Michigan; ( d) to plead not guilty to any criminal charge brought against it; (e) to have a trial by jury, at which it would be presumed not guilty of the charge and the United States would have to prove every essential element of the charged offense beyond a reasonable doubt for it to be found guilty;
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 2 of 19 Pg ID 44 (f) to confront and cross-examine witnesses against it and to subpoena witnesses in its defense at trial; (g) (h) to appeal its conviction if it is found guilty; and to appeal the imposition of sentence against it. AGREEMENT TO PLEAD GUILTY AND WAIVE_CERTAIN RIGHTS 2. The defendant knowingly and voluntarily waives the rights set out in Paragraph l (b )-(g) above. The defendant also knowingly and voluntarily waives the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. 3 742, that challenges the sentence imposed by the Court if that sentence is consistent with or below the recommended sentence in Paragraph 9 of this Plea Agreement, regardless of how the sentence is determined by the Court. This agreement does not affect the rights or obligations of the United States as set forth in 18 U.S.C. 3742(b)-(c). Nothing in this paragraph, however, will act as a bar to the defendant perfecting any legal remedies it may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel or prosecutorial misconduct. The defendant agrees that there is currently no known evidence of ineffective assistance of counsel or prosecutorial misconduct. Pursuant to Fed. R. Crim. P. 7(b ), the defendant will waive indictment and plead guilty to a one-count Information to be filed in the United States District Court for the Eastern District of Michigan. The Information will charge the defendant with participating in a conspiracy from at least as early as January 2000 until at least July 2011, depending on the product, to suppress and eliminate competition in the automotive and internal combustion engine parts industry by agreeing to allocate the supply of, rig bids for, and to fix, stabilize, and maintain the prices of, spark plugs, oxygen sensors, and starter motors sold in the United States and elsewhere, in violation of the Sherman Antitrust Act, 15 U.S.C. 1. 2
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 3 of 19 Pg ID 45 3. The defendant will plead guilty to the criminal charge described in Paragraph 2 above pursuant to the terms of this Plea Agreement and will make a factual admission of guilt to the Court in accordance with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below. FACTUAL BASIS FOR OFFENSE CHARGED 4. Had this case gone to trial, the United States would have presented evidence sufficient to prove the following facts: (a) For purposes of this Plea Agreement, the "relevant period" for spark plugs and oxygen sensors is that period from at least as early as January 2000 until at least July 2011, and for starter motors, from at least as early as January 2009 until at least June 20I 0. During the relevant periods, the defendant was a corporation organized and existing under the laws of the Federal Republic of Germany, with its principal place of business in Gerlingen, Germany. During the relevant periods, the defendant was a manufacturer of spark plugs, oxygen sensors, and starter motors, employing more than 5,000 individuals, and was engaged in the sale of spark plugs, oxygen sensors, and starter motors in the United States and elsewhere. 1. For purposes of this plea agreement, a spark plug is an engine component that delivers high electric voltage from the ignition system to the combustion chamber of an internal combustion engine. It ignites the compressed fuel/air mixture with an electric spark while containing combustion pressure within the engine. Spark plugs have a basic manufacturing design composed primarily of a shell, an insulator, a center electrode and an external (ground) electrode. At issue in this plea agreement are spark plugs utilizing copper, nickel or platinum electrodes. 3
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 4 of 19 Pg ID 46 Il. For purposes of this plea agreement, an oxygen sensor is an engine component of gasoline engines that provides an input to the engine management computer or "engine control unit, 11 which adjusts the ratio of air/fuel injected into the engine to determine an ideal combustion air/fuel ratio. Oxygen sensors are located before and after the catalytic converter in the exhaust system to measure the amount of oxygen in the exhaust. Depending on their usage and location in the exhaust system, oxygen sensors incorporating a plated ceramic thimble sensor element may also be referred to as "standard oxygen sensors," and oxygen sensors incorporating an electromechanical gas pump and additional electronic circuitry as "air fuel ratio sensors.'' m. For purposes of this plea agreement, starter motors are a small electric motors used in starting internal combustion engines. (b) During the relevant periods, the defendant, through its employees, including high-level personnel of the defendant, participated in a conspiracy with other persons and entities engaged in the manufacture and sale of spark plugs, oxygen sensors, and starter motors, as defined above, the primary purpose of which was to allocate the supply of, rig bids for, and to fix, stabilize, and maintain the prices of, spark plugs, oxygen sensors, and starter motors sold in the United States and elsewhere. In furtherance of the conspiracy, the defendant, through its employees, engaged in discussions and attended meetings with representatives of another manufacturer of spark plugs and oxygen sensors, and with another manufacturer of starter motors. During such meetings and conversations, agreements were reached to allocate the supply of spark plugs and oxygen sensors, rig bids for the sale of spark plugs and oxygen sensors and to 4
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 5 of 19 Pg ID 47 fix, stabilize, and maintain the prices of spark plugs and oxygen sensors sold to DaimlerChrysler AG, Ford Motor Company, General Motors Company, Andreas Stihl AG & Co. and certain of their subsidiaries in the United States and elsewhere, and to allocate the supply of starter motors, rig bids for the sale of starter motors, and to fix, stabilize, and maintain the prices of, starter motors sold to Volkswagen AG and certain of its subsidiaries in the United States for use in certain Volkswagen vehicles assembled in the United States. During the relevant periods, the defendant's relevant sales of spark plugs and oxygen sensors to DaimlerChrysler AG, Ford Motor Company, General Motors Company and Andreas Stihl AG & Co. in the United States and elsewhere totaled at least $154 million. (c) During the relevant periods, spark plugs, oxygen sensors, and starter motors sold by one or both of the conspirator firms, as well as payments for spark plugs, oxygen sensors, and starter motors traveled in interstate commerce. The business activities of \ the defendant and its co-conspirators in connection with the production and sale of spark plugs, oxygen sensors, and starter motors that were the subject of the conspiracy was within the flow of, and substantially affected, interstate trade and commerce. (d) Acts in furtherance of the conspiracy were carried out within the Eastern District of Michigan, Southern Division. Spark plugs, oxygen sensors, and starter motors that were the subject of the conspiracy were sold to DaimlerChrysler AG, Ford Motor Company, General Motors Company, Volkswagen AG, and Andreas Stihl AG & Co. and certain of their subsidiaries by the defendant's United States subsidiary, which is located in the Eastern District of Michigan. 5
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 6 of 19 Pg ID 48 ELEMENTS OF THE OFFENSE 5. The elements of the charged offense are that: (a) the conspiracy described in the Information existed at or about the time alleged; (b) the defendant knowingly became a member of the conspiracy; and ( c) the conspiracy described in the Information either substantially affected interstate commerce in goods or services or occurred within the flow of interstate commerce in goods and services. POSSIBLE MAXIMUM SENTENCE 6. The defendant understands that the statutory maximum penalty which may be imposed against it upon conviction for a violation of Section One of the Sherman Antitrust Act is a fine in an amount equal to the greatest of: (a) $100 million (15 U.S.C. l); (b) twice the gross pecuniary gain the conspirators derived from the crime (18 U.S.C. 357l(c) and (d)); or ( c) twice the gross pecuniary loss caused to the victims of the crime by the conspirators (18 U.S.C. 3571(c) and (d)). 7. In addition, the defendant understands that: (a) pursuant to 18 U.S.C. 356l(c)(l), the Court may impose a term of probation of at least one year, but not more than five years; (b) pursuant to U.S.S.G. 8B 1.1 of the United States Sentencing Guidelines ("U.S.S.G.," "Sentencing Guidelines," or "Guidelines") or 18 U.S.C. 3563(b)(2) or 3663(a)(3), the Court may order it to pay restitution to the victims of the offenses charged; and (c) pursuant to 18 U.S.C. 3013(a)(2)(B), the Court is required to order the defendant to pay a $400 special assessment upon conviction for the charged crime. 6
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 7 of 19 Pg ID 49 SENTENCING GUIDELINES 8. The defendant understands that the Sentencing Guidelines are advisory, not mandatory, but that the Court must consider, in determining and imposing sentence, the Guidelines Manual in effect on the date of sentencing unless that Manual provides for greater punishment than the Manual in effect on the last date that the offense of conviction was committed, in which case the Court must consider the Guidelines Manual in effect on the last date that the offense of conviction was committed. The parties agree that there is no ex post facto issue under the November 1, 2014 Guidelines Manual. The Court must also consider the other factors set forth in 18 U.S.C. 3553(a) in determining and imposing sentence. The defendant understands that the Guidelines determinations will be made by the Court by a preponderance of the evidence standard. The defendant understands that although the Court is not ultimately bound to impose a sentence within the applicable Guidelines range, its sentence must be reasonable based upon consideration of all relevant sentencing factors set forth in 18 U.S.C. 3553(a). SENTENCING AGREEMENT 9. Pursuant to Fed. R. Crim. P. l l(c)(l)(c) and subject to the full, truthful, and continuing cooperation of the defendant and its related entities, as defined in Paragraph 13 of this Plea Agreement, the United States and the defendant agree that the appropriate disposition of this case is, and agree to recommend jointly that the Court impose, a sentence requiring the defendant to pay to the United States a criminal fine of $57.8 million, payable in full before the fifteenth (15th) day after the date of judgment and no order of restitution ("the recommended sentence"). The parties agree that there exists no aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the U.S. Sentencing Commission in formulating the Sentencing Guidelines justifying a departure pursuant to U.S.S.G. 5K2.0. The parties agree not to seek at the sentencing hearing any sentence outside of the Guidelines range nor any Guidelines adjustment for any reason that is not set forth in this Plea Agreement. The 7
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 8 of 19 Pg ID 50 parties further agree that the recommended sentence set forth in this Plea Agreement is reasonable. (a) The defendant understands that the Court will order it to pay a $400 special assessment, pursuant to 18 U.S.C. 3013(a)(2)(B), in addition to any fine imposed. (b) In light of the availability of civil causes of action, which potentially provide for a recovery of a multiple of actual damages, the recommended sentence does not include a restitution order for the offense charged in the Information. (c) Both parties will recommend that no term of probation be imposed, but the defendant understands that the Court's denial of this request will not void this Plea Agreement. ( d) The United States and the defendant jointly submit that this Plea Agreement, together with the record that will be created by the United States and the defendant at the plea and sentencing hearings, and the further disclosure described in Paragraph 11, will provide sufficient information concerning the defendant, the crime charged in this case, and the defendant's role in the crime to enable the meaningful exercise of sentencing authority by the Court under 18 U.S.C. 3553. The United States and defendant agree to request jointly that the Court accept the defendant's guilty plea and impose sentence on an expedited schedule as early as the date of arraignment, based upon the record provided by the defendant and the United States, under the provisions of Fed. R. Crim. P. 32(c)(l)(A)(ii), U.S.S.G. 6Al.1, and Rule 32.l(h) of the Criminal Local Rules. The Court's denial of the request to impose sentence on an expedited schedule will not void this Plea Agreement. 10. Subject to the full, truthful, and continuing cooperation of the defendant and its related entities, as defined in Paragraph 12 of this Plea Agreement, and prior to sentencing in this case, the United States will fully advise the Court and the Probation Office of the fact, manner, 8
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 9 of 19 Pg ID 51 and extent of the defendant's and its related entities' cooperation and their commitment to prospective cooperation with the United States' investigation and prosecutions, all material facts relating to the defendant's involvement in the charged offense, and all other relevant conduct. 11. The United States and the defendant understand that the Court retains complete discretion to accept or reject the recommended sentence provided for in Paragraph 9 of this Plea Agreement. (a) If the Court does not accept the recommended sentence, the United States and the defendant agree that this Plea Agreement, except for Paragraph 1 l(b) below, will be rendered void. (b) If the Court does not accept the recommended sentence, the def end ant will be free to withdraw its guilty plea (Fed. R. Crim. P. l l(c)(5) and (d)). If the defendant withdraws its plea of guilty, this Plea Agreement, the guilty plea, and any statement made in the course of any proceedings under Fed. R. Crim. P. 11 regarding the guilty plea or this Plea Agreement or made in the course of plea discussions with an attorney for the government will not be admissible against the defendant in any criminal or civil proceeding, except as otherwise provided in Fed. R. Evid. 410. In addition, the defendant agrees that, if it withdraws its guilty plea pursuant to this subparagraph of this Plea Agreement, the statute of limitations period for any offense referred to in Paragraph 14 of this Plea Agreement will be tolled for the period between the date of signature of this Plea Agreement and the date the defendant withdrew its guilty plea or for a period of sixty (60) days after the date of.signature of this Plea Agreement, whichever period is greater. DEFENDANT'S COOPERATION 12. The defendant and its subsidiaries, including but not limited to Robert Bosch LLC, (collectively "related entities") will cooperate fully and truthfully with the United States in the prosecution of this case, the current federal investigation of violations of federal antitrust and 9
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 10 of 19 Pg ID 52 related criminal laws involving the manufacture or sale of spark plugs, oxygen sensors or starter motors, any federal investigation relating to or resulting therefrom, and any litigation or other proceedings arising or resulting from any such investigation to which the United States is a party (collectively "Federal Proceeding"). Federal Proceeding includes, but is not limited to, an investigation, prosecution, litigation, or other proceeding regarding obstruction of, the making of a false statement or declaration in, the commission of perjury or subornation of perjury in, the commission of contempt in, or conspiracy to commit such offenses in, a Federal Proceeding. The defendant's subsidiaries for purposes of this Plea Agreement are entities that the defendant had a greater than 50% ownership interest in as of the date of signature of this Plea Agreement. The full, truthful, and continuing cooperation of the defendant and its related entities will include, but not be limited to: (a) producing to the United States all documents, information, and other materials, wherever located, not protected under the attorney-client privilege or the workproduct doctrine, (and with translations into English), in the possession, custody, or control of the defendant or any of its related entities, that are requested by the United States in connection with any Federal Proceeding; (b) using its best efforts to secure the full, truthful, and continuing cooperation, as defined in Paragraph 13 of this Plea Agreement, of the current directors, officers, and employees of the defendant or any of its related entities as may be requested by the United States, but excluding the four ( 4) individuals listed in Attachment A filed under seal, including making these persons available in the United States and at other mutually agreed-upon locations, at the defendant's expense, for interviews and the provision of testimony in grand jury, trial, and other judicial proceedings in connection with any Federal Proceeding. Current directors, officers, and employees are defined for purposes of this Plea Agreement as individuals who are directors, officers, or employees 10
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 11 of 19 Pg ID 53 of the defendant or any of its related entities as of the date of signature of this Plea Agreement. 13. The full, truthful, and continuing cooperation of each person described in Paragraph l 2(b) above will be subject to the procedures and protections of this paragraph, and will include, but not be limited to: (a) producing in the United States and at other mutually agreed-upon locations all documents, including claimed personal documents, and other materials, wherever located, not protected under the attorney-client privilege or the work-product doctrine, (and with translations into English), that are requested by attorneys and agents of the United States in connection with any Federal Proceeding; (b) making himself or herself available for interviews in the United States and at other mutually agreed-upon locations, not at the expense of the United States, upon the request of attorneys and agents of the United States in connection with any Federal Proceeding; (c) responding fully and truthfully to all inquiries of the United States in connection with any Federal Proceeding, without falsely implicating any person or intentionally withholding any information, subject to the penalties of making a false statement or declaration (18 U.S.C. 1001, 1623), obstruction of justice (18 U.S.C. 1503, et seq.), or conspiracy to commit such offenses; (d) otherwise voluntarily providing the United States with any material or information not requested in (a) - (c) of this paragraph and not protected under the attorney-client privilege or work-product doctrine that he or she may have that is related to any Federal Proceeding; ( e) when called upon to do so by the United States in connection with any Federal Proceeding, testifying in grand jury, trial, and other judicial proceedings in the United States fully, truthfully, and under oath, subject to the penalties of perjury (18 11
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 12 of 19 Pg ID 54 U.S.C. 1621), making a false statement or declaration in grand jury or court proceedings (18 U.S.C. 1623), contempt (18 U.S.C. 401-402), and obstruction of justice (18 U.S.C. 1503, et seq.); and (f) agreeing that, if the agreement not to prosecute him or her in this Plea Agreement is rendered void under Paragraph 15( c ), the statute of limitations period for any Relevant Offense, as defined in Paragraph l 5(a), will be tolled as to him or her for the period between the date of signature of this Plea Agreement and six (6) months after the date that the United States gave notice of its intent to void its obligations to that person under this Plea Agreement. 14. Subject to the full, truthful, and continuing cooperation of the defendant and its related entities, as defined in Paragraph 12 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called for by this Plea Agreement and the imposition of the recommended sentence, the United States agrees that it will not bring further criminal charges against the defendant or any of its related entities for any act or offense committed before the date of signature of this Plea Agreement that was undertaken in furtherance of antitrust conspiracy involving the manufacture or sale of oxygen sensors, spark plugs, or starter motors. The nonprosecution terms of this paragraph do not apply to (a) any acts of subornation of perjury (18 U.S.C. 1622), making a false statement (18 U.S.C. 1001), obstruction of justice (18 U.S.C. 1503, et seq.), contempt (18 U.S.C. 401-402), or conspiracy to commit such offenses; (b) civil matters of any kind; ( c) any violation of the federal tax or securities laws or conspiracy to commit such offenses; or ( d) any crime of violence. 15. The United States agrees to the following: 12
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 13 of 19 Pg ID 55 (a) Upon the Court's acceptance of the guilty plea called for by this Plea Agreement and the impositi on of the recommended sentence and subject to the exceptions noted in Paragraph 1 S(c), the United States agrees that it will not bring criminal charges against any current director, officer, or employee of the defendant or its related entities for any act or offense committed before the date of signature of this Plea Agreement and while that person was acting as a director, officer, or employee of the defendant or its rel ated entities that was undertaken in furtherance of antitrust conspiracy involving the manufacture or sale of oxygen sensors, spark plugs, or starter motors ("Relevant Offense"), except that the protections granted in this paragraph do not apply to the four (4) individuals li sted in Attachment A filed under seal; (b) Should the United States determine that any current director, officer, or employee of the defendant or its related entities may have information relevant to any Federal Proceeding, the United States may request that person's cooperation under the terms of this Plea Agreement by written request delivered to counsel for the individual (with a copy to the undersigned counsel for the defendant) or, if the individual is not known by the United States to be represented, to the undersigned counsel fo r the defendant; (c) If any person requested to provide cooperation under Paragraph l S(b) fa il s to comply fully with his or her obligations under Paragraph 13, then the terms of this Plea Agreement as they pertain to that person and the agreement not to prosecute that person granted in this Plea Agreement will be rendered void, and the United States may prosecute such person criminal ly for any federal crime of which the United States has knowledge, including, but not limited to any Relevant Offense; 13
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 14 of 19 Pg ID 56 ( d) Except as provided in Paragraph 15( e ), information provided by a person described in Paragraph l 5(b) to the United States under the terms of this Plea Agreement pertaining to any Relevant Offense, or any information directly or indirectly derived from that information, may not be used against that person in a criminal case, except in a prosecution for perjury or subornation of perjury (18 U.S.C. 1621-22), making a false statement or declaration (18 U.S.C. 1001, 1623), obstruction of justice (18 U.S.C. 1503, et seq.), contempt (18 U.S.C. 401-402), or conspiracy to commit such offenses; (e) If any person who provides information to the United States under this Plea Agreement fails to comply fully with his or her obligations under Paragraph 13 of this Plea Agreement, the agreement in Paragraph 15( d) not to use that information or any information directly or indirectly derived from it against that person in a criminal case will be rendered void; (f) The nonprosecution terms of this paragraph do not apply to civil matters of any kind; any violation of the federal tax or securities laws or conspiracy to commit such offenses; any crime of violence; or perjury or subornation of perjury (18 U.S.C. 1621-22), making a false statement or declaration (18 U.S.C. 1001, 1623), obstruction of justice (18 U.S.C. 1503, et seq.), contempt (18 U.S.C. 401-402), or conspiracy to commit such offenses; and (g) Documents provided under Paragraphs 12(a) and l 3(a) will be deemed responsive to outstanding grand jury subpoenas issued to the defendant or any of its related entities. 16. The United States agrees that when any person travels to the United States for interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for 14
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 15 of 19 Pg ID 57 meetings with counsel in preparation therefor, the United States will take no action, based upon any Relevant Offense,to subject such person to arrest, detention, or service of process, or to prevent such person from departing the United States. This paragraph does not apply to an individual's commission of perjury or subornation of perjury (18 U.S.C. 1621-22), making a false statement or declaration (18 U.S.C. 1001, 1623), obstruction of justice (18 U.S.C. 1503, et seq.), contempt (18 U.S.C. 401-402), or conspiracy to commit such offenses. 17. The defendant understands that it may be subject to suspension or debarment action by state or federal agencies other than the United States Department of Justice, Antitrust Division, based upon the conviction resulting from this Plea Agreement, and that this Plea Agreement in no way controls what action, if any, other agencies may take. However, the Antitrust Division agrees that, if requested, it will advise the appropriate officials of any governmental agency considering such action of the fact, manner, and extent of the cooperation of the defendant and its related entities as a matter for that agency to consider before determining what action, if any, to take. The defendant nevertheless affirms that it wants to plead guilty regardless of any suspension or debarment consequences of its plea. REPRESENTATION BY COUNSEL 18. The defendant has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. The defendant has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised it of the nature of the charge, any possible defenses to the charge, and the nature and range of possible sentences. 15
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 16 of 19 Pg ID 58 VOLUNTARY PLEA 19. The defendant's decision to enter into this Plea Agreement and to tender a plea of guilty is freely and voluntarily made and is not the result of force, threats, assurances, promises, or representations other than the representations contained in this Plea Agreement and Attachment A (filed under seal). The United States has made no promises or representations to the defendant as to whether the Court will accept or reject the recommendations contained within this Plea Agreement. VIOLATION OF PLEA AGREEMENT 20. The defendant agrees that, should the United States determine in good faith, during the period that any Federal Proceeding is pending, that the defendant or any of its related entities have failed to provide full, truthful, and continuing cooperation, as defined in Paragraph 12 of this Plea Agreement, or have otherwise violated any provision of this Plea Agreement, the United States will notify counsel for the defendant in writing by personal or overnight delivery, email, or facsimile transmission and may also notify counsel by telephone of its intention to void any of its obligations under this Plea Agreement (except its obligations under this paragraph), and the defendant and its related entities will be subject to prosecution for any federal crime of which the United States has knowledge including, but not limited to, the substantive offenses relating to the investigation resulting in this Plea Agreement. The defendant agrees that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against the defendant or its related entities for any offense referred to in Paragraph 14 of this Plea Agreement, the statute of limitations period for such offense will be tolled for the period between the date of signature of this Plea Agreement and six (6) months 16
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 17 of 19 Pg ID 59 after the date the United States gave notice of its intent to void its obligations under this Plea Agreement. 21. The defendant understands and agrees that in any further prosecution of it or its related entities resulting from the release of the United States from its obligations under this Plea Agreement because of the defendant's or its related entities' violation of this Plea Agreement, any documents, statements, information, testimony, or evidence provided by it, its related entities, or their current directors, officers, or employees to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against it or its related entities. In addition, the defendant unconditionally waives its right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410. ENTIRETY OF AGREEMENT 22. This Plea Agreement and Attachment A constitute the entire agreement between the United States and the defendant concerning the disposition of the criminal charges in this case. This Plea Agreement cannot be modified except in writing, signed by the United States and the defendant. 23. The undersigned is authorized to enter this Plea Agreement on behalf of the defendant as evidenced by the Resolution of the Board of Directors of the defendant attached to, and incorporated by reference in, this Plea Agreement. 24. The undersigned attorneys for the United States have been authorized by the Attorney General of the United States to enter this Plea Agreement on behalf of the United States. 17
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 18 of 19 Pg ID 60 25. A facsimile or PDF signature will be deemed an original signature for the purpose of executing this Plea Agreement. Multiple signature pages are authorized for the purpose of executing this Plea Agreement. DATED Respectfully submitted, BY: BY: BY: Sebastian Biedenkopf Senior Vice President, Group General Counsel ROBERT BOSCH GmbH BY: Jeremy J. Calsyn Cleary Gottlieb Steen & Hamilton LLP 2000 Pennsylvania Avenue, N. W. Washington, D.C. 20006 (202) 974-1522 jcalsyn@cgsh.com Counsel for ROBERT BOSCH OmbH Kenneth W. Gaul Jason D. Jones George S. Baranko Diana Kane Rebecca D. Ryan Attorney U.S. Department of Justice Antitrust 450 Fifth Division Washingotn, Street DC N.W. 20530, Suite 11300 Tel: kenneth.gaul@usdo (202)307-6147 j.gov BY: Steven M. Kowal K&LGates LLP. 70 W. Madison Street, Suite 3100 Chicago, IL 60602 (312) 807-4430 steven.kowal@klgates.com Counsel for ROBERT BOSCH GmbH BY: William R. Jansen Wamer Norcross & Judd LLP 2000 Town Center, Suite 2700 Southfield, MI 48074 (248) 784-5022 wjansen@wnj.com Counsel for ROBERT BOSCH GmbH 18
2:15-cr-20197-GCS-APP Doc # 12 Filed 06/22/15 Pg 19 of 19 Pg ID 61 ROBERT BOSCH GMBH BOARD OF MANAGEMENT RESOLUTIONS At the Meeting of the Board of Management of ROBERT BOSCH GMBH ("Bosch") held on February 24, 2015, the Board: RESOLVED, that the execution, delivery, and performance of the Plea Agreement between the United States Department of Justice and Bosch, in substantially the form attached hereto, is hereby approved; RESOLVED, that Dr. Sebastian Biedenkopf, Senior Vice President and Group General Counsel of Bosch, is authorized, empowered, and directed to execute and deliver the Plea Agreement in the name and on behalf of Bosch; and RESOLVED. that Dr. Sebastian Biedenkopf, Senior Vice President and Group General Counsel, is authorized, empowered, and directed to represent Bosch before any court or governmental agency in order to make statements and confirmations in accordance with the Plea Agreement, including entering a guilty plea on behalf of Bosch. CERTIFICATE We, Dr. Stefan Asenkerschbaumer and Christoph Kubel, Board Members of Bosch, a corporation organized and existing under the laws of Germany, do hereby certify that the foregoing resolutions adopted by the Board of Management of Bosch at a meeting of the Board of Management in Germany on February 24, 2015, are true, correct and complete and that said resolutions have not been amended, modified or repealed, and remain in full force and effect, as of the date hereof. Signed in Gerlingen, Germany this March 27, 2015, by ROBERT BOSCH GMBH Dr. Stefan Asenkerschbaumer Deputy Chairman of the Board of Management ROBERT BOSCH GMBH Christoph Kubel Member of the Board of Management